1. By the present order I propose to dispose of the captioned interlocutory applications (hereinafter referred to as IAs‘). The plaintiff, in support of his case has filed IA No. 11037/2009 under the provisions of Order 39 Rule 1 and 2 read with Section 151 of the CPC of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC‘), while the defendant has filed IA No. 11538/2009 under the provisions of Order 39 Rule 4 read with Section 151 of the CPC for vacation of the interim order dated 28.08.2009. By order dated 28.08.2009 the defendant, its agents, assigns and all others acting for and on behalf of the defendant were restrained from using the trademark LOW-ABSORB and LOW ABSORB TECHNOLOGY or any other mark deceptively similar to the plaintiff and in relation to its goods.

2. For the purposes of disposal of the applications, the following facts are to be noticed:

PLAINTIFF’S CASE

2.1 The plaintiff, which was incorporated on 13.10.1988, claims to be one of the quickest growing Fast Moving Consumer Goods (in short FMCG‘) companies in India. The plaintiff manufactures and trades in large range of products and hence, is a proprietor with respect to such products sold by them in India and abroad. Amongst various businesses, the plaintiff is also in the business of manufacture and sale of edible oil products.

2.2 The plaintiff claims that in and around January, 2001 it coined the mark ?LOW ABSORB, which, over a period of time was used in relation to those products which had the quality of absorbing ‘less oil. The technology involved is evidently based on an additive used in the production of edible oil which retards the foaming of oil during the process of frying and/or cooking. Resultantly, the additive which is essentially an anti-foaming agent, according to the plaintiff, reduces the absorption of oil by the food stuff during the process of frying. The said mark ?LOW ABSORB was extensively advertised by the plaintiff.

2.3 The plaintiff has since then obtained a registration of the trade mark ?LO-SORB and also ?LOSORB. Both registrations were obtained in class 29 which are effective from 28.05.2001. The plaintiff further claims that each month, it sells about 17.5 lacs of units of edible oils under the mark ?LOW ABSORB and ?LOSORB through its 53000 outlets which are spread all over India. The edible oil manufactured by the plaintiff is also evidently sold in the neighboring countries like Nepal and Bhutan as well as some south-eastern countries.

2.4 The plaintiff claims that in October-November, 2005, it aired advertisements staring the famous chef Sanjeev Kapoor to promote its goods under trade mark ?LOSORB. It claims that it spend nearly Rs.1.20 crores on the said advertisement. It is also averred that services of other super models such as Ms Noyonika Chatterjee and Ms Indrani Dasgupta were availed of for the purposes of advertisement in 2005. It is specifically averred that in so far as sales figure of the edible oils sold under the mark ?LOW ABSORB? and ?LOSORB? are concerned, they have arisen from Rs.102.48 crores in the year 2001-02 to nearly Rs.515.43 crores in the year 2008-09. In the first quarter of 2008-09, it has registered a sale revenue of around Rs.131.10 crores. The advertising expenditure, between the period 2005-06 to 2008-09 has arisen from Rs.3.90 crores to Rs.9.54 crores. In sum and substance, the case of the plaintiff is that extensive user and publicity accompanied by the high quality of its goods has resulted in the trade mark ?LOW ABSORB and ?LOWSORB being extensively identified and associated with it.

2.5 The plaintiff alleged that in August, 2009, they came across the defendant‘s advertisement in respect of edible oil manufactured and sold by the defendant under the trade mark Sundrop which was accompanied by the plaintiff‘s trade mark ?LOW ABSORB and ?LOWSORB. It is alleged that the defendant has not only adopted the plaintiff‘s mark ?LOW ABSORB but also suffi